Hook v. Rego (In re Kesish)

• Decision Date: 07 September 2012
• Docket Number: No. 2D11–3914.,2D11–3914.
• Citation: 98 So.3d 183
• Parties: In re Guardianship of Josefa KESISH. Joan Nelson Hook, Appellant, v. Paula Rego, Guardian, Appellee.
• Court: Florida District Court of Appeals

98 So.3d 183

In re Guardianship of Josefa KESISH.Joan Nelson Hook, Appellant,

v.Paula Rego, Guardian, Appellee.

No. 2D11–3914.

District Court of Appeal of Florida, Second District.

Sept. 7, 2012.

Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Michael W. Connors of Michael W. Connors, P.A., North Palm Beach, for Appellant.

No appearance for Appellee.

DAVIS, Judge.

Joan Nelson Hook challenges the trial court's order setting attorney's fees for her representation of the Guardianship of Josefa Kesish. Because the trial court's order is not supported by competent, substantial evidence, we reverse.

Attorney Hook is a certified elder law attorney who has practiced as a member of the Florida Bar in the Sixth Circuit for eighteen years. She regularly represents guardianships as a part of her practice, often in the capacity of court-appointed counsel.

Mrs. Kesish, the seventy-two-year-old ward, sought a voluntary guardianship after she and her husband had been defrauded of more than a million dollars by an insurance company. As part of the process, she was examined by a physician, who concluded that she was competent to make the decision to request the voluntary guardianship. Paula Rego was appointed to be Mrs. Kesish's guardian and was to represent her interests in seeking the return of the fraudulently taken funds. Attorney Hook undertook representation of the guardianship and was successful in obtaining a full refund from the insurance company without having to file a lawsuit.

Attorney Hook subsequently filed a petition for authorization of the payment of her fees. She attached to her petition her billing records, which indicated that she had expended forty-seven hours on behalf of the guardianship. She requested $250 per hour, for a total fee of $11,750. Although her records reflected time expended by paralegals, Attorney Hook did not seek compensation for paralegal time. Neither the guardian nor the ward objected to the amount requested.

The petition was referred to a court monitor, who reviewed the records and advised the trial court that Attorney Hook had done an “A+” job and that the number of hours was reasonable. However, the monitor recommended a fee of $240 an hour. Without holding a hearing, the trial court entered an order reducing the hourly rate to $200 an hour for forty-seven hours and awarding a total fee of $9400.

Attorney Hook filed a motion for reconsideration of her request, attaching her own affidavit and the affidavits of two practicing attorneys in support of her request. A hearing was then held on the motion for reconsideration.

At that hearing, Attorney Hook presented the testimony of a practicing attorney who specializes in suits against insurance companies. He testified that his firm would take such a case only on a contingencyfee basis and that thus his fee would have been considerably higher than $250 an hour. He added that the $250 per hour rate was very reasonable for a board-certified attorney, especially in light of the highly favorable results Attorney Hook obtained. Attorney Hook's second witness was a guardianship attorney who is board certified in elder law. He testified that he charges $250 an hour or more for such work.

Attorney Hook then testified that her standard rate is $250 an hour and that she has been charging that rate since she became board certified in elder law in 1999.

Following the hearing, the trial court entered an order denying the motion for reconsideration and affirming the prior authorization of $200 an hour for forty-seven hours. This was error.

“[A]n attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered.” § 744.108(1), Fla. Stat. (2010). Section 744.108(2)(a)-(i) sets forth the criteria that the court shall consider in determining a reasonable attorney's fee, including but not limited to “[t]he time and labor required,” “[t]he fee customarily charged in the locality for similar services,” “[t]he results obtained,” and “[t]he experience, reputation, diligence, and ability of the person performing the service.” And the order awarding fees “must set forth the basis for the award, including [ (1) ] the hours determined to be compensable, [ (2) ] the hourly rate, and [ (3) ] the other factors considered in arriving at the award.” Thorpe v. Myers, 67 So.3d 338, 346 (Fla. 2d DCA 2011); see also Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003) (“[A]n award of attorney's fees must ... contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.”), cited in Thorpe, 67 So.3d at 346. Only the reasonableness of the hourly rate is at issue here.

Although the determination of a reasonable hourly rate is left to the discretion of the court, there must be competent, substantial evidence to support the award. Cf. In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) (“The amount of a guardian fee is entrusted to the discretion of the circuit court, and its determination will not be disturbed unless there is a lack of competent substantial evidence to support the award.”). The order entered in this case fails to set out the considerations that resulted in the trial...